Sirens of the Island of Giglio

To those of us who live in Puget Sound country, the Italian cruise ship tragedy calls to mind a similiar episode in our local waters. In 1983, the 2800 gross ton state ferry ELWHA grounded on a reef just off Orcas Island, in the scenic San Juans. In that case, the skipper deliberately deviated from the ferry’s customary course through the center of Harney Channel to gain a better view of a house on the shore of Orcas and struck a rock. He did this to show a female passenger (who was in the wheelhouse in violation of regulations) how her house looked from the water. Severe damage to the hull of the vessel resulted, but there was no serious injury or loss of life. The incident is recalled almost whimsically in maritime lore, the female passenger referred to mythically as the “Siren of the San Juans.”

The grounding of the COSTA CONCORDIA will never be recalled with anything but sadness and perhaps, when all the facts are known, a sense of outrage. Initial reports suggest malfeasance on the part of the cruise line. Although the shipowner has been quick to lay all blame on the skipper, this is a standard ploy. But upon more thorough investigation, it is likely that Carnival Cruise Lines, will be shown to have compromised marine safety in service of profit. This is a recurrent theme in cases of shipwreck.

In the Italian case, it appears cruise lines had routinely permitted the practice of “buzzing” the islands to please passengers and, presumably, prospective customers ashore. Yet when this practice resulted in grounding, as could have been anticipated by prudent shipowners, all blame was immediately heaped upon the master who breached the often tested edge of the envelope.

The early reports also raise questions about the adequacy of abandon ship drills. Once again, this sort of activity makes no contribution to and may detract from the perceived pleasure of the passengers. The overriding motive being profit, safety practices suffer.

An archaic principle of maritime law permits a ship owner to limit its liability arising from a maritime casualty to the value of the vessel and pending freight. Under U.S maritime law, this protection can be claimed if the casualty occurred without the “privity or knowledge” of the vessel owner. Historically, operational negligence of the master has often been deemed to be outside the owner’s privity and knowledge — hence Carnival’s knee jerk reaction, to blame a discrete and unexpectable act of the captain.

Under international maritime law, unaltered by U.S. statute, a shipowner may limit liabilty even if he was negligent, provided it is not proven that “the loss resulted from his personal act or omission, committed with the intent to cause such a loss, or recklessly and with knowledge that such a loss would probably result.” Convention of Limitation of Liablity for Maritime Claims. Under this standard, breaking limitation may be a tall order.

In the first days following this tragedy, even as the death toll remains unknown, it is too early to predict the outcome of litigation. But it seems highly likely that a measure of fault will, in the end, be laid at the doorstep of Carnival Cruise Lines management. Unlike the owners of the TITANIC, the owners of the COSTA CONCORDIA permitted a vessel equipped with radar and GPS to run aground on a charted reef. This seems unimaginable in the absence of managerial negligence. One question is whether the captain’s fault can be imputed to management. Another is whether the shipowner’s own conduct will be shown to have reached the level of recklessness.

The Mediterranean situs of the wreck makes it difficult to resist the Odyssean metaphor invoked in the ELWHA case. For reasons as yet undetermined, the captain of the COSTA CONCORDIA seems to have been lured by sirens on Giglio. As Carnival management was no doubt aware, other skippers had been similiarly inclined. But they could have easily been chained to the mast by strictly enforced rules and computer actuated alarms. Why were they not?

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